GUADALUPE REYNA v. MELISSA ANN LUNA AND LORI LEE LUNA--Appeal from 93rd District Court of Hidalgo County

   NUMBER 13-03-676-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

GUADALUPE REYNA, Appellant,

v.

MELISSA ANN LUNA AND LORI LEE LUNA, Appellees.

 On appeal from the 93rd District Court

of Hidalgo County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

This is a trespass to try title action. The sole issue on appeal is whether the trial court erred in granting summary judgment in favor of the appellees. We affirm.

I. Facts

Appellant, Guadalupe Reyna, originally owned the 110-acre tract in dispute. On May 3, 2000, a warranty deed purporting to convey this property was filed and recorded with the Hidalgo County Clerk. The deed bore the signature of Reyna as grantor and stated that for the consideration of $10.00, the property was transferred to appellees, Melissa Ann Luna and Lori Lee Luna, as grantees. According to the affidavit of an employee of Reyna, Jose Cabrerra, which the Lunas attached to their motion for summary judgment, this transfer occurred during a conference call between Reyna, who was in Mexico, Guadalupe Reyna, Jr. (Reyna=s son), and Raul Luna (the father of Melissa Ann and Lori Lee Luna). In exchange for Reyna=s property, Raul Luna reportedly paid a total of $80,000 to the AReyna family.@ Raul Luna also allegedly paid $60,000 to the first lien holder on the property. According to the affiant, Guadalupe Reyna, Jr., permissively signed the deed for Reyna.

Reyna later filed a trespass to try title action. The Lunas filed an answer claiming that Raul Luna paid over $100,000 consideration for the property and that they are the rightful owners of the property. The Lunas also filed a motion for summary judgment, attaching a copy of the deed and the Cabrerra affidavit as evidence. Reyna filed a response to the motion for summary judgment alleging that the affidavit was not competent evidence because it did not address the allegations that the signature on the deed was forged.

The trial court granted the motion for summary judgment without specifying the grounds relied on for its ruling. The court also declared that the deed was valid and the Lunas were the rightful owners of the property. Reyna appealed the trial court=s granting of the summary judgment.

II. Motions for Summary Judgment

When reviewing the granting of a motion for summary judgment, the appellate court must first determine whether the trial court granted the motion on traditional or Ano-evidence@ grounds. See Hamlett v. Holcomb, 69 S.W.3d 816, 818 (Tex. App.BCorpus Christi 2002, no pet.). The court must do so to prevent the burden of proof from being improperly shifted. Id. at 819. In the Lunas= motion for summary judgment, which otherwise complies with the requirements of a traditional motion, they state: AAlso Plaintiff can not present any evidence to the Court that [the] Deed showing Defendants as owners was forged.@ However, the motion does not go beyond this one statement to develop a no-evidence motion for summary judgment on the grounds of forgery.

The rule in Texas is well-settled that a party may combine a traditional motion for summary judgment with a no-evidence motion. See Binur v. Jacobo, 135 S.W.3d 646, 650-51(Tex. 2002). However, a party filing a no-evidence motion for summary judgment under Rule 166a(i) must fulfill certain specific procedural requirements. Tex. R. Civ. P. 166a(i); Meru v. Huerta, 136 S.W.3d 383, 386 (Tex. App.BCorpus Christi 2004, no pet.); see also Oasis Oil Corp. v. Koch Ref. Co. L.P., 60 S.W.3d 248, 252 (Tex. App.BCorpus Christi 2001, pet denied).

The Lunas= motion for summary judgment does not state the elements of the claim as to which there is no evidence and could only be interpreted as a prescribed Aconclusory@ motion or Ageneral@ no-evidence challenge. See Tex. R. Civ. P. 166a cmt.; see also Meru, 136 S.W.3d at 387 (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993)). As we have held that Awhere a motion for summary judgment does not strictly comply with the requirements of Rule 166a(i) it will be construed as a traditional summary judgment,@ we must construe the entire motion as a traditional motion and review it accordingly. See Meru, 136 S.W.3d at 387 (citing Michael v. Dyke, 41 S.W.3d 746, 750 (Tex. App.BCorpus Christi 2001, pet. denied)).

III. Standard of Review

The propriety of a summary judgment is a question of law; therefore, an appellate court reviews the trial court=s granting of summary judgment de novo. Natividad v. Alexis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); see Ortega v. City Nat=l Bank, 97 S.W.3d 765, 771-72 (Tex. App.BCorpus Christi 2003, no pet.); Mobil Producing Tex. & N.M. v. Cantor, 93 S.W.3d 916, 918 (Tex. App.BCorpus Christi 2002, no pet.). Summary judgment will only issue when the movant has shown the right to summary judgment as a matter of law. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). To be entitled to a traditional summary judgment, the movant needs to establish its entitlement to summary judgment on the issues expressly presented to the trial court by conclusively establishing all essential elements of its cause of action or defense as a matter of law. Tex. R. Civ. P. 166a(c); see Johnson County Sheriff=s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996); Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).

The summary judgment proof must establish, as a matter of law, that there is no genuine issue of fact concerning one or more of the essential elements of the plaintiff=s cause of action or the defendant=s affirmative defenses. See Hermann & Andreas Ins. Agency, Inc. v. Appling, 800 S.W.2d 312, 315 (Tex. App.BCorpus Christi 1990, no writ).

IV. Analysis

The Lunas= motion for summary judgment contains several assertions as to why they should be entitled to summary judgment. Specifically, they contend that the evidence conclusively establishes (a) they paid for the property, (b) there was no forgery, and (c) the transaction was authorized. In support of these assertions, the Lunas attached as evidence the affidavit of Cabrerra, a former employee of Reyna, which stated that Reyna authorized his son to sign the deed for him and that the Luna family gave consideration to the Reyna family, Athus, conveying [the] property to@ the Lunas. The Lunas also attached the deed to the property, which was signed by a AGuadalupe Reyna.@

In Reyna=s response to the motion for summary judgment, he simply states that the deed was forged, and the Cabrerra affidavit did not address the alleged forgery, implying that the Lunas did not resolve all issues of material fact. On appeal, Reyna argues that the affidavit is conclusory, and thus, it is not competent summary judgment evidence.[1] An objection that an affidavit is conclusory is an objection to substance, not to form, and therefore may be raised for the first time on appeal. See AMS Constr. Co. v. Warm Springs Rehab. Found., 94 S.W.3d 152, 156 (Tex. App.BCorpus Christi 2002, no pet.).

Reyna does not dispute the evidence presented by the Lunas, which includes the facts that the deed was signed by Reyna=s son on his father=s behalf and that Raul Luna paid over $100,000 to both Reyna and a lien holder as consideration for the property. These facts have never been contested. Reyna=s Aforgery@ argument therefore appears to be a claim that his son was not actually authorized to sign on his behalf, thus rendering the AGuadalupe Reyna@ signature on the deed a Afake.@

Reyna=s son=s name was also Guadalupe Reyna, and according to the summary judgment evidence, he signed the deed not as the owner but as the authorized agent of his father. Reyna=s son may therefore be liable to Reyna or to the Lunas for inducing confidence in an agency relationship that did not exist or that did not extend to such acts. See Nobles v. Marcus, 533 S.W.2d 923, 926 (Tex. 1976). However, while the alleged agent may be culpable for his fraud, by law, this agent has not committed a forgery. See id. Accordingly, no forgery claim could have been properly raised.

Thus, by presenting evidence of the signed deed and the consideration paid for the deed, as well as the affidavit from Reyna=s own employee attesting to the circumstances in which the deed was signed, the Lunas effectively established all elements of their claim, and the trial court properly granted their motion for summary judgment. See Green v. Canon, 33 S.W.3d 855, 858 (Tex. App.BHouston [14th Dist.] 2000, pet. denied) (AIf from the whole instrument a grantor and grantee can be ascertained, and there are operative words . . . showing an intention by the grantor to convey title . . . to the grantee, and is signed and acknowledged by the grantor it is a deed which accomplishes a legally effective conveyance.@); see also Tex. Prop. Code Ann. ' 5.021 (Vernon 1984). Furthermore, the Lunas also effectively established their right to be awarded equitable title to the property, given that they and their father fully performed their obligations under the conveyance. See Neeley v. Intercity Mgmt. Corp., 623 S.W.2d 942, 951 (Tex. App.BHouston [1st Dist.] 1981, no writ) (A[A] plaintiff in a trespass to try title suit may recover on the strength of an equitable title as well as a legal one."); see also White v. Hughs, 867 S.W.2d 846, 849 (Tex. App.BTexarkana 1993, no writ) ("Equitable title may be shown when the plaintiff proves that he has paid the purchase price and fully performed the obligations under the contract.@). As no forgery claim could be legally raised under the facts as presented, we conclude there was no unresolved genuine issue of material fact remaining, and the trial court did not err by granting summary judgment in favor of the Lunas.

V. Conclusion

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 13th day of October, 2005.

[1]Reyna also asserts that Athe entire affidavit is tainted by hearsay evidence,@ and therefore the affidavit is inadmissible. While we do not address whether the affidavit was indeed hearsay, we note that the prohibition against hearsay affidavits is not absolute. In other words, otherwise inadmissible hearsay evidence admitted without objection is not denied probative value merely because it is hearsay. See Tex. R. Evid. 802. In the absence of an objection, hearsay in an affidavit is competent summary judgment evidence. See, e.g.,Einhorn v. LaChance, 823 S.W.2d 405, 410 (Tex. App.BHouston [1st Dist.] 1992, writ dism=d w.o.j.). Thus, an objection that an affidavit contains hearsay is an objection to the form of the affidavit, and it must be made to the trial court, otherwise it is waived. See id. Reyna did not object to the alleged hearsay in the affidavit at the trial court; therefore, he waived his right to appeal this issue. See Tex. R. App. P. 33.1.